Countermeasures and Jurisdiction : Problems of Asymmetry, Fragmentation and Effectiveness

The doctrinal role of a lawfully taken countermeasure is to serve as a defense (or circumstance precluding wrongfulness) which justifies the reacting State’s suspension of its performance of an international obligation owed to the target State. Countermeasures, however, need not be symmetrical. In response to a violation of Treaty A, for example, States may, and often will, react by taking countermeasures suspending performance of obligations under Treaty B. Where both (or one of) Treaty A and Treaty B contains a provision for the compulsory adjudication of disputes, complicated questions of jurisdiction can arise. How, for example, is an asymmetrical countermeasures defense to be treated by an adjudicatory body with limited jurisdiction if the basis of the defense is an allegedly wrongful act under a treaty over which that adjudicatory body has no jurisdiction? Similarly, how is the countermeasures defense to be treated if it is based upon a violation of customary international law? This article addresses the treatment of asymmetrical countermeasures by adjudicatory bodies of limited jurisdiction, analyzing the scope of discretion accorded to such bodies in the management of their jurisdiction and the impact that jurisdictional limitations may have on State practice with respect to the formulation and use of countermeasures. The analysis here engages the wider academic debate on the fragmentation of international law, although the issues raised are far from academic. Already the effect of jurisdictional limits on adjudicatory bodies to consider defensive pleas of asymmetrical countermeasures has arisen for decision in investor-State disputes and disputes before the World Trade Organization. Such issues likely will continue to arise across the range of fields covered by international law. It is an important issue and one that is due for attention